On November 15, 2011, the Emery County Progress reported that the county attorney -- the same office that prosecutes crimes in the county -- not only plays a major role in selecting opposing counsel, but also controls the budget of the local indigent defense system. Though this column has reported on undue prosecutorial interference in Utah before (click here to read about Utah district attorneys involved in the selection and oversight of public defenders), this is the first documented instance in which there is a direct financial conflict of interest between the two adversarial components of the court system.

On October 17, 2011 the Salt Lake Tribune highlighted the potential impact of a recent Utah Supreme Court decision on county indigent defense budgets. In State v. Parduhn, the Court held: “local governments are statutorily required to provide an indigent defendant with funding for a necessary defense resource, even when the defendant is represented by private counsel.”

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In response to the ACLU of Utah's recent report on the state's failure to meet its constitutional right to counsel oblications, two Utah newspapers published editorials expressing appropriate shock and outrage. "One thing that any self-respecting bunch of Don’t Tread On Me Utahns should be concerned about is the prospect of being arrested, cuffed and dragged into court without so much as a marginally competent attorney on hand to defend you," the Salt Lake Tribune wrote on August 28, 2011.

In Polk County v. Dodson, 454 U.S. 312 (1981), the United States Supreme Court found that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages,” noting that a “public defender is not amenable to administrative direction in the same sense as other state employees”. In fact, the Court noted, a “defense lawyer best serves the public not by acting on the State's behalf or in concert with it, but rather by advancing the undivided interests of the client.” A new report by the American Civil Liberties Union of Utah (ACLU-Utah) finds that the state of Utah fails to uphold this constitutional obligation. In “most” of the nine counties studied by the ACLU-Utah, the local prosecutor “routinely” is responsible for hand-selecting opposing defense counsel and often helps to negotiate the terms of defender contracts. Worse, the report highlights that in several counties defense attorneys must request trial-related expenses from the county attorneys.